Timothy Woods v The Queen
[2016] VSCA 293
•25 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0163
| TIMOTHY WOODS | Applicant |
| v | |
| THE QUEEN | Respondent |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
---
| JUDGES: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 25 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 293 |
| JUDGMENT APPEALED FROM: | DPP v Woods (Unreported, County Court of Victoria, Judge Murphy, 20 July 2016) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary (3y 9m) – Common law assault (x2) (6m (x2)) – Making threats to kill (x2) (8m (x2)) – Contravention of a family violence order (x2) (2m and 6m) – Attempt to pervert the course of justice (10m) – Total effective sentence 5y – Non-parole period 3y – Leave to appeal granted on proposed ground 4 concerning ‘double punishment’ otherwise leave refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Balmer & Associates |
| For the Respondent | No appearance | Mr John Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 10 May 2016 the applicant was found guilty in the County Court after a trial of one offence of aggravated burglary, two offences of common law assault, two offences of making threats to kill, and two offences of contravening a family violence intervention order. He had already pleaded guilty, on a separate indictment, to one offence of attempting to pervert the course of justice. He was acquitted of further charges arising out of the same incident, being one charge of common law assault, one charge of making a threat to kill, a charge of indecent assault, and a charge of persistent contravention of a family violence intervention order (which was a more serious alternative to the two counts of contravention of which he was convicted).
A plea hearing was conducted on 11 May 2016 and 15 July 2016. On 20 July 2016 the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation Trial indictment: F10491221 1. Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 3 years’ 9 months Base 2 Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months 2 months 3. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months 4. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months 4 months 5. Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months Alt. 9A Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty unit fine [Family Violence Protection Act 2008 s 123(2)] 2 months Alt. 9B Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty unit fine [Family Violence Protection Act 2008 s 123(2)] 6 months 3 months Plea Indictment: F10491221.1 1 Attempt to pervert the course of justice [Contrary to Common Law] 25 years [Crimes Act 1958 s 320] 10 months 6 months Total effective sentence 5 years’ imprisonment Non-parole period 3 years’ imprisonment Pre-sentence detention declared 184 days Other Orders:
• Sentenced as a Serious Violent Offender on Count 4
The applicant seeks leave to appeal on four grounds. The proposed grounds are set out in the notice of application for leave to appeal in the following terms:
Ground One:
The sentences imposed on the charges were manifestly excessive, taking into account the following particulars;
(a) Continued support from his partner;
(b) The Applicant’s desire to care for his young child;
(c)The sentencing Judge failed to adequately take into account prospects of rehabilitation;
(d)Remorse as evidenced by successful attempts at rehabilitation since the commission of the offences;
(e)Remorse as expressed by concession that he was present with respect to the Aggravated burglary and contravention charges;
(f)The sentencing Judge failed to adequately take into account the Applicant’s Intellectual Disability and limited education and literacy (undisputed) in the context of his achieved rehabilitation.
Ground Two:
The sentencing Judge erred in categorizing the aggravated burglary in the mid-range of seriousness for that offence.
Ground Three:
The sentencing Judge erred when he took into account as an aggravating factor going to the seriousness of the offences the fact that the Applicant was at the time of the commission of the offences subject to a Community Corrections Order for ‘threats and assaults’.
Ground Four:
The sentencing Judge failed to avoid double punishment between the offence of aggravated burglary, assaults and threats to kill on the one hand and the charged offence of contravene a family violence order on 10 February 2015 (Charge 9B) on the other.
Personal background and circumstances of the offences
The relevant offences were committed on 9 and 10 February 2015. The applicant was then 32 years of age. At the time of sentence he was 34.
According to a psychiatric report by Dr Leon Turnbull dated 30 June 2016, which was tendered on behalf of the applicant on the plea, the applicant grew up around Dandenong and Hallam with his parents and one brother. He had difficulty at school and was transferred to a special school before leaving in Grade 7. He attended TAFE for a short time and then worked in labouring jobs until approximately five years ago. He has six children to different relationships. He was, for a time, the principal carer of his young son. That son was removed into the care of his mother in circumstances which are not fully described in the relevant material. Dr Turnbull refers to a reported diagnosis of an intellectual disability, which he says he is not in a position to confirm but which he has ‘no reason to doubt’.
The applicant’s criminal history begins when he was aged 18. By the time he was 23 he had been dealt with by non-custodial dispositions in Magistrates’ Courts a number of times for violent offences.
On 13 April 2006 the applicant was convicted of offences of recklessly causing injury and assaulting police and placed on a community based order for 12 months. On 26 July 2007 he was convicted of two offences of sexual penetration of a child under 16 in the Melbourne County Court and placed on a community based order for two years. Having failed to comply with the community based order imposed on 13 April 2006, on 25 September 2007 he was sentenced to a short term of imprisonment which was wholly suspended on the original offences of recklessly causing injury and assaulting police.
In two separate appearances during 2008 the applicant was convicted of four offences of resisting police and one offence of entering a private place without a lawful excuse. He was sentenced to a very short term of imprisonment which was equal to the time which he had then spent in custody. He received another short term of imprisonment which was wholly suspended in 2011 for offences which included a threat to inflict serious injury and yet a further offence of resisting police.
On 8 March 2012 the applicant was convicted of an indecent assault in the Magistrates’ Court and sentenced to 6 months’ imprisonment, a sentence which was again wholly suspended. On 11 February 2013 he was found to have contravened the terms of that suspended sentence. He was convicted of an offence of theft on the same day at the same court. The six month term of imprisonment which had been suspended was restored and a term of one month’s imprisonment to be served concurrently was imposed on the theft offence.
On 30 April 2014, the applicant committed a number of offences in the course of a threatening confrontation late at night, while he was drunk, in the home of two friends or acquitances. When initially interviewed he denied having been at the premises at the time. On 27 August 2014 at the Horsham Magistrates’ Court he was convicted of offences of threatening serious injury, refusing to leave a place after a warning, unlawful assault, and aggravated assault on a female, as a consequence of this confrontation. He was placed on a community correction order for 12 months with conditions requiring, amongst other things, assessment and treatment for alcohol abuse.
On 28 November 2014 the applicant’s then domestic partner, who became the victim of the offences on 9 and 10 February 2015, obtained a final family violence intervention order against him. Contact between the applicant and the victim continued until 2 February 2015 (without necessarily breaching the terms of the order) when the applicant established a new relationship and moved into a house not far from the victim’s home. There was then a dispute between the victim and the applicant in relation to rent and the applicant’s goods.
On 9 February 2015 the applicant attended the victim’s premises, in contravention of the family violence intervention order. He collected a blanket which had been left for his mother to collect from the back veranda of the victim’s home.
During the night of 9-10 February 2015 the applicant was drinking alcohol with his new domestic partner. At approximately 3.20 am, whilst intoxicated, the applicant returned to the victim’s home. He used a key to gain entry. He committed assaults and made threats to kill while he was there. When interviewed by police the next day he denied having been there. At his instigation his new partner and his mother made false statements to police as to his whereabouts that night. At his trial he did not contest being at the victim’s premises that night but contested the issue of his intent. The jury must have concluded beyond reasonable doubt that his intent upon entry was to commit an assault as that was the intent specified in the aggravated burglary charge.
The assaults the applicant committed on his ex-partner that night did not cause any serious physical injuries. The threats to kill were directed at his ex-partner and at her young daughter who was present in the house at the time. According to a victim impact statement tendered on the plea, the incident has had a very significant psychological effect upon both the ex-partner and her daughter.
The relevant offences were committed during the currency of the community correction order which had been imposed on 27 August 2014 as a consequence of the somewhat similar offending which had taken place on 30 April 2014. A Community Correctional Services report dated 17 April 2015 in relation to compliance with the order made 27 August 2014, which was tendered on the plea, indicates, amongst other things, that the applicant had illustrated a lack of insight into his offending. The report concludes by stating that the applicant was not considered to be suitable for a further community based disposition.
The applicant was in custody from the day after the relevant offences until he was released on bail on the Court Integrated Service Program (CISP) on 3 June 2015. Reports prepared by the applicant’s CISP case manager, tendered on the plea, reveal that he responded very well to that program. In particular, the reports indicate that he had gained a level of insight in relation to his alcohol abuse.
A letter written by the applicant to the sentencing judge similarly stressed the progress which he had made on the CISP. He also referred to his desire to assist his new fiancée, and the young son for whom he had previously been the principal carer.
As to the intellectual disability referred to by Dr Turnbull, Dr Turnbull’s conclusion was that any intellectual disability which the applicant has is likely to be in the ‘mild range’. He said the applicant’s verbal skills are superior to his other skills. His verbal skills were said to be ‘somewhat above average for those I assess in custody’.
Dr Turnbull was of the opinion that the applicant’s impulsivity and judgment had not been obviously affected by intellectual deficits. He continued:
While an intellectual disability can confer some effect on judgment and impulse control, in Mr Woods case, in regards the relevant offending, it is the consumption of alcohol that is far more relevant in terms of lessening inhibition than any mild or subtle intellectual deficits.
Sentencing reasons
The sentencing judge set out the circumstances of the offending in some detail. I will not repeat his comprehensive summary of those circumstances.
The sentencing judge referred to the fact that the seriousness of the offending had not been disputed. He then continued:
[25]The offence of aggravated burglary is complete at the moment of entry into the property. The mode of entry into the premises, your intention at the time, and the circumstances of your entry are essential to assessing the seriousness of the offence of aggravated burglary. This was an entry in the early hours of the morning, where you must be taken to have known that the complainant, who had the benefit of an intervention order against you, would be asleep there with her young child in bed. Although you did not break into the premises, you entered the premises in circumstances where you full well knew that you were not entitled to use a key to enter the premises.
[26]Your then-girlfriend gave evidence that you had been drinking at the time. You were fully aware that you were the subject of an intervention order preventing you from attending at the premises. Given that the complainant had an intervention order against you, you must also be taken to have been aware that she was in a vulnerable position.
[27]You have been found to have had an intention at the time of entry to commit an assault on her. In fact you did proceed to commit the assaults and make threats against her and her daughter. I accept that the injuries sustained by the complainant were relatively minor, but the psychological impact must have been very significant. The prosecution accepted that there was no evidence that the complainant's young child observed any of the fighting.
[28]An aggravating factor here is that at the time of the offending you were the subject of the intervention order in favour of the complainant and her daughter. Notwithstanding that, you proceeded to attend the property, and assault and threaten her and her daughter.
[29]An additional aggravating factor is that at the time of the offending, you were also the subject of a community corrections order that had been imposed on 27 August 2014 for threats and assaults. This was therefore further offending of a somewhat similar nature to the offending that you had been dealt with around six months earlier.
The sentencing judge referred to the victim impact statement and to the applicant’s prior criminal history. He set out the applicant’s personal circumstances and the relevant conclusions reached by Dr Turnbull.
The sentencing judge assessed the applicant’s prospects of rehabilitation saying that he could not rate them as ‘other than guarded’.
The sentencing judge referred to what were said to be comparable cases, to which he had been referred, in particular Whiteford v The Queen[1], Secombe v The Queen[2] and Evison v The Queen[3]. He also referred to this Court’s decisions in Hogarth v The Queen[4] and in Anderson v The Queen[5].
[1][2016] VSCA 26 (‘Whiteford’).
[2][2014] VSCA 28 (‘Secombe’).
[3][2014] VSCA 132 (‘Evison’).
[4](2012) 37 VR 658 (‘Hogarth’).
[5][2014] VSCA 255 (‘Anderson’).
The sentencing judge said that he considered the aggravated burglary to be ‘mid-range of seriousness’. He cautioned himself against double punishment for the offences committed after the unauthorised entry.
The sentencing judge declared that the applicant was to be sentenced on count 4 as a serious violent offender.
Submissions
In relation to proposed ground 1 (manifest excess) the applicant submitted that the sentencing judge had failed to give sufficient weight to the various matters set out in the proposed ground, which I earlier quoted in full. It was not suggested that the sentencing judge had overlooked any of those matters. It was submitted that the judge’s conclusion that the applicant’s prospects for rehabilitation were ‘guarded’ was inconsistent with the evidence indicating significant improvement in the applicant’s insight and behaviour whilst in the community prior to trial.
In relation to proposed ground 2 (categorisation of the aggravated burglary) the applicant submitted that the judge had erred in categorising the aggravated burglary as being of mid-range seriousness. It was submitted that there had been no breaking into the premises, no involvement of any weapon, and that the applicant had entered alone. Reference was made to the fact that only minor injuries were inflicted.
In relation to proposed ground 3 (CCO as an aggravating factor) the applicant submitted that the sentencing judge had treated the fact that the offences had been committed whilst subject to a community correction order as being an aggravating factor when such a consideration should only have been relevant to the prospects for rehabilitation and specific deterrence. It was submitted that in effect the sentencing judge had imposed a fresh penalty for past offending.
In relation to proposed ground 4 (double punishment) the applicant submitted that the sentencing judge had referred to the contravention of the intervention order when assessing the seriousness of the other offences. He had treated that as an aggravating factor on those offences, but had then imposed a term of imprisonment and part-cumulated that term for the contravention of the order.
The respondent submitted the proposed grounds were not reasonably arguable and that leave should be refused.
As to the aggravated burglary, in addition to Hogarth and Anderson, the respondent relied upon Director of Public Prosecutions v Meyers[6] in relation to the seriousness of this kind of offending involving former domestic partners.[7] The respondent submitted that Whiteford, Secombe and Evison were comparable cases and that the sentence imposed here ‘sits comfortably’ with them.
[6](2014) 44 VR 486 (‘Meyers’).
[7]Ibid 495–8 [36]–[51].
The respondent relied upon Haddara v The Queen[8] in support of the sentencing judge’s treatment of the fact that the offences were committed whilst on a CCO as an aggravating factor.
[8][2016] VSCA 168 (‘Haddara’).
The respondent submitted that the sentencing judge’s reference to the breach of the intervention order when assessing the seriousness of the other offences did not indicate that ‘double punishment’ had been imposed. The respondent submitted that ‘in context’ what the judge said was ‘simply to recognise the existence’ of the separate criminality in the breach of the intervention order.
Analysis
It is convenient to deal firstly with the proposed grounds contending that the sentencing judge made specific errors.
I do not consider the proposed ground that the sentencing judge made an error in categorising the aggravated burglary as being of ‘mid-range seriousness’ to be arguable (proposed ground 2). Whilst it is true that there was no ‘break in’, use of a weapon, or offending in company, other aspects of the offending fully warranted the sentencing judge’s characterisation. The entry was in the early hours of the morning. It was a home invasion of a most threatening kind, which would inevitably instil fear in the vulnerable occupants and undermine their sense of security in their own home.
I do not consider there to be any arguable error on the part of the sentencing judge when he said that the fact that the offences were committed whilst the applicant was on a community correction order for not dissimilar offending was an aggravating factor (proposed ground 3). The fact that the offences were committed whilst on a community correction order for similar offending is an aggravating circumstance, as this Court said in Haddara.[9]
[9][2016] VSCA 168 [83].
As to proposed ground 4, it seems to me to be arguable that the sentencing judge did treat the contravention of the family violence intervention order on 10 February 2016 as an aggravating factor in relation to the other offences committed that day, notwithstanding that there was a separate charge for that offence (charge Alt 9B) for which the applicant was sentenced to 6 months’ imprisonment, 3 months of which was cumulated. The sentencing judge described it as an ‘aggravating factor’ in the same context in which he dealt with the fact that the applicant was on a community correction order.
Turning then to proposed ground 1, manifest excess is a stringent ground which is difficult to make good. In order to succeed in an appeal the applicant would have to show that the sentences imposed, the total effective sentence and/or the non-parole period were wholly outside the range of sentences open to the sentencing judge.
The applicant has a history of violent offending and he has prior convictions for offending similar to the offending which occurred here. As indicated, the judge was right, in my view, to treat the aggravated burglary as being of mid-range seriousness. Offending of this kind in response to domestic disputes is serious. Given the applicant’s history, the sentences imposed were modest, in my view. There is no apparent disconformity with current sentencing practice.[10]
[10]As the respondent submitted the sentences here seem consistent with those in Whiteford, Secombe and Evison. The offending in Meyers was more serious, and the sentences there (after re-sentence) are comparable to those imposed here, but the offender in Meyers could rely on the discount to which he was entitled for guilty pleas and could rely on Verdins considerations in relation to the burden of imprisonment: See Meyers (2014) 44 VR 486, 504 [78].
I do not overlook the positive reports the applicant received in relation to his participation in CISP, Dr Turnbull’s report, or the matters emphasised by the applicant in the letter he wrote to the sentencing judge. It has to be said, however, that the applicant has been given many prior opportunities to reform. He is no longer young. He has not taken advantage of the non-custodial dispositions which he has received in the past.
I do not consider it to be reasonably arguable that any of the sentences imposed, the total effective sentence, or the non-parole period are manifestly excessive.
Conclusion
The proposed ground concerning double punishment (4) is arguable and I will grant leave to appeal on that ground. Otherwise, leave to appeal is refused.
7
0